I don’t want to say too much about the Electoral Finance Act. Some of you will know that I have been the spokesperson for the Coalition for Open Government, which generally supported the new law, arguing that it’s much better than the system we used to have, serves important democratic ends, and is much less of an imposition on free speech than its opponents claim. But in this blog, I’m wearing my media lawyer hat. And wearing that hat, let me make this prediction: the EFA will not produce a swag of litigation.

If I’m right about this, then most of the political journalists in this country, along with many MPs and a horde of bloggers, ought to be extremely embarrassed. They have been confidently telling us that the EFA will trigger a deluge of court cases.

I think they’re wrong, and here’s why:

— For anyone spending less than $12,000 on electioneering, the only real issue is whether they have put their name and address on the ad. We’ve seen Andy Moore get warned for not putting his name to his Don’tVoteLabour site. (In the Herald, Andy rather unconvincing told us that one of the reasons he didn’t put his name on the site was that he lived at home and wanted to protect his family. No doubt his family will feel much safer now that he’s discussed it in the Herald. The Herald itself was also outraged by this. How can you justify a policy that requires people to reveal their identities before speaking out on public issues? Of course, the Herald itself doesn’t require its correspondents to provide their names. Oh, wait…) It was already the law that you have to put your name on electioneering handbills and posters and newspaper ads. This reform can be seen as simply updating that law. My point: hardly anyone ever got prosecuted for breaching this law. I doubt it will be much different with websites. If someone refuses to comply with a gentle warning from the Electoral Commission, they can be a martyr to the following proposition: “it’s an outrage that I have to tell the people I’m trying to influence who I am (though I haven’t ever objected to similar name requirements on fliers and posters and newspaper ads).” I think the number of people who will want to take that stand is limited.

— Those who neglect to put their name on a placard during a political demonstration or on a usenet post will not be prosecuted. They are covered by legislative instruction to the Electoral Commission not to worry about minor infringements.

— Those wanting to spend more than $12,000 to spend on electioneering have to register with the Electoral Commission. We’re down to a very small number of people and organisations here. It’s possible that one might decide to flout this law by not registering. I think a prosecution would be likely to demonstrate that: (a) not that many people need to register, (b) the registration requirement is to offer an additional guarantee that the public know the identity of big-spending election advertisers, and (c) registration is not that onerous. None of it is very hot publicity for the anti-EFA cause.

— Someone may decide to flout the $120,000 spending cap on third party electioneering, to show that it’s an unfair restriction on their speech rights. Only a handful of people and organisations can afford to do this, and they would risk drawing attention to that fact. Tim Shadbolt might get prosecuted, but I rather think he’ll be perceived as using the EFA as a publicity stunt. It’s tough for him to argue that he hasn’t been able to get his message about SIT funding across to the voters.

— The limits are much lower for constituencies (register at $1000; cap at $4000). If there is legal action, it’s much more likely to be at the local level, I think. I expect this will most often be due to lack of knowledge of the law. Where they are discovered, a warning may be thought sufficient.

— The legislation only applies to ads aimed at influencing voting behaviour. The Electoral Commission has interpreted this very narrowly, so it catches only a small set of messages: those that are explicitly aimed at the election. The Commission is providing a lot of latitude for “issue ads” even when these may have some effect on the election. So those who might want to prompt a lawsuit to demonstrate that the law is (a) unclear, or (b) too restrictive, face electoral authorities who have drawn a fairly clear bright line which allows maximum play for free speech. Anyone who wants to provoke a prosecution will have to push the line very hard, and most ordinary people will end up thinking: “Huh? But that really is an election ad. This hardly shows that the law casts its net too widely”.

— A prosecution would have to go through two layers: the Electoral Commission would have to decide it’s infringing and serious enough to refer to the police, who would then have to decide whether to exercise their discretion to prosecute (and let’s not forget that they didn’t prosecute anyone under the Electoral Act last election despite good evidence of a pile of electoral offences).

— Could someone try to engineer a case before the courts to get a ruling on a particular ad? Courts are reluctant to issue declaratory judgments on moot points.

— Any prosecution is likely to occur after the election, rather negating its election publicity value.

That’s not to say that there are not grey areas in the law. Just that they are not nearly as likely to be litigated as the EFA’s detractors seem to think, and certainly not before the election.

What there will be, I guess: a barrage of stories about the evils of the law, and its lack of clarity; an increased involvement of lawyers behind the scenes giving advice on ads; and a range of people and organisations exploiting loopholes in the new law. The big story, I suspect, is not that the EFA is an outrageous blow to freedom of expression, but that it does little to achieve its purposes. Watch for the bill’s detractors to slyly switch critiques.

42 Responses to “A prediction about the Electoral Finance Act”

Certainly prosecutions (i.e. trials) are likely to occur after the election, but referrals to the police, and the institutions of prosecutions are likely to happen before. The Police still only have six months (from the time they have enough evidence) to lay a prosecution, and in the case of martyrs, sufficient evidence is likely to exist the day the martyrdom happens.

It is interesting that the old section that required names on advertising (and addresses) applied all the time, the new one only applies for 10-11 months.

One concern people have of course is that in lieu of increased involvement of lawyers behind the scenes, some people just won’t speak out of fear or confusion.

And there’s also the possibility that the legal problems may arise in relation to third party regulation, but with candidate or party expenditure. Some of the new corrupt practices, when combined with the extended regulated period, and the confusion over the exemption for Parliamentary material have the potential to result in a large number of lost seats.